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September 5, 2006

Examining reasons for the ugly reasonableness review patterns

Following up this post about another Eighth Circuit reversal of a below-guideline sentence, a favorite reader sent me an e-mail to "respectfully suggest that footnote 7 of US v. McDonald, No. 05-1617 (8th Cir. Sept. 5, 2006) would benefit from discussion in your blog."  I aim to please, so let's discuss footnote 7 of old McDonald.

In this footnote, the McDonald majority purports to "take a critical look" at the fact that, in post-Booker sentencing review cases, the Eighth Circuit has "tended to affirm sentences imposed above the advisory guidelines range (sixteen affirmed, one vacated) and vacate those below the range (five affirmed, twenty-five vacated)."  According to this footnote, there are "several mundane explanations for the disparity."  In short form, here are the McDonald majority's mundane explanations:

  1. Seven sentences were vacated "because the sentencing court did not explain any reasoning for the downward variance."
  2. Seven sentences went "downward more than 100 months [from the advisory guideline range], but only one ... departs or varies upward by that amount."
  3. Five sentences "imposed no prison term at all, despite a lower end of the advisory guidelines range of 12, 24, 30, 46 and 63 months respectively."
  4. Statistics indicate that "about three-quarters of below-guidelines range sentences do not reach us for appellate review and are, thus, effectively affirmed," and "the limited number of below-guidelines sentences actually appealed by the Government represent those that appear to be the most debatable, and, thus, the most likely to be overturned on appeal."

These insights provide a good explanation for why defendants almost always lose in sentencing appeals in the Eighth Circuit.  But, in my opinion, they do not provide a good justification for the ugly pattern of reasonableness review in the Eighth Circuit and elsewhere.

Tellingly, the first three points above are all guideline-centric: as I have lamented before, the Eighth Circuit and other circuits are framing and judging reasonableness in reference to the guidelines, when Booker indicates they should be framing and judging reasonableness in reference to all the provisions of 3553(a).  Consider point 3: if thoughtful district judges, following the instructions of 3553(a), concluded that no prison terms were required in five cases, why should the low end of the (advisory) guideline range be critical?

In addition, though point 4 may explain the high rate of reversal of below-guideline sentences, why are nearly 95% of above-guideline sentences affirmed?  If the Eighth Circuit is going to be so guideline-centric after Booker, shouldn't defendants get the benefit as well as the burden of the guideline-focused world?  The cumulative pattern suggests that the Eighth Circuit only trusts sentencing judges when they decide to be extra harsh, but not when they decide to be lenient.

September 5, 2006 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

Yet another scholarly gap-filler

As noted here a few days ago, First Impressions from the Michigan Law Review purports to "fill the gap between the blogosphere and the traditional law review article."  I called this entity an interesting variation on the Harvard Law Review's Forum and the Yale Law Jounal's Pocket Part, and I wondered if other like projects are in the works elsewhere. 

Now I see that the University of Pennsylvania Law Review is getting in on the act with PENnumbra, which apparently seeks to "unit[e] the public and the legal academy."  Hmm.... whatever gap there was in short-form scholarship is sure getting filled up fast.  I have an inkling that other such blog-journal synergies may be on the way, and now I wonder if the long-form law review may be really starting to show its age.

September 5, 2006 in On blogging | Permalink | Comments (0) | TrackBack

The pace of executions in 2006

The Death Penalty Information Center has this new item noting that, in 2006, the pace and patterns of executions are comparable to trends in recent years.  This is somewhat surprising news given that lethal injection litigation has delayed many executions and created de facto moratoriums in numerous states (details here and here).  It suggest (1) that the lethal injection litigation has held up executions only in states that rarely execute and/or (2) that there could have been a notable uptick in the number of execution this year were it not for all the lethal injection litigation.

Some recent related posts:

September 5, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Two government wins of note from the Eleventh Circuit

Surprise, surprise, the government wins two more sentencing appeals in the Eleventh Circuit today.  But both prosecutorial wins are interesting for different reasons.

In US v. Bonilla, No. 05-16857 (11th Cir. Sept. 5, 2006) (available here), the circuit affirms as reasonable a post-Booker within-guideline sentence even though, during an initial sentencing during the Blakely-Booker interregnum, the district judge had suggested an alternative below-guideline sentence if the guidelines were no longer mandatory.  In a footnote, the Bonilla court says that the "fact that the district court suggested a [below-guideline] sentence as an alternative at the first sentencing hearing is irrelevant."

In US v. Gupta, No. 04-16091 (11th Cir. Sept. 5, 2006) (available here), the circuit reverses a pre-Booker sentence based on guideline calculation errors.  Notably, the Gupta opinion, though running 39 pages, never even mentions Booker or whether the sentence imposed might still be reasonable despite the errors.  The facts of Gupta strongly suggests the district court is unlikely to impose a higher sentence now that the guidelines are merey advisory, but the court never examines this reality.

September 5, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Eighth Circuit gets back to work reversing below-guideline sentence

Dog bites man in the Eighth Circuit again today as a split panel reverses a sentence below the guidelines in US v. McDonald, No. 05-1617 (8th Cir. Sept. 5, 2006) (available here).  The new McDonald does not significantly alter an old circuit story (details here), although it does include a bit of sparring between the majority and dissent over the Eighth Circuit's decided tendency to favor the government's position in its reasonableness review.  Here is perhaps the most potent quotable from Judge Bye's dissent in McDonald:

I believe today's decision is symptomatic of the growing pains our courts are experiencing as we move away from a constitutionally infirm system of mandatory sentencing to the advisory system commanded by Booker. If we fail to implement the promise of Booker and do not relinquish greater discretion to experienced district court judges whose proximity to sentencing renders them eminently more qualified to appreciate the subtleties of each case, we will find ourselves the architects of a new and equally unconstitutional de facto mandatory sentencing system crafted from the ashes of the last.

September 5, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Another below-guideline sentence reversed by the Fourth Circuit

Though it's old news, I continue to be amazed that decisions by district judges to impose a sentence below the guidelines are, roughly speaking, five times more likely to be reversed than affirmed (details here).  The latest example I noticed comes from a Fourth Circuit ruling late last week in US v. Kahn, No. 04-4519 (4th Cir. Sept 1, 2006) (available here).

At the end of a long opinion in a multi-defendant case, Kahn provides an overview of the Fourth Circuit's approach to reasonableness review.  Then it reverses a below-guideline sentence because, in the panel's opinion, the district judge gave "excessive weight to the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct ... [and] did not give proper weight to the other § 3553(a) factors."  Tellingly, however, Kahn does not explain what § 3553(a) factors other than the guidelines were not given proper weight (even though the district judge had mentioned many others).

Some related reasonableness review posts:

September 5, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Gearing up for former Governor Ryan's sentencing

In this post last week, I noted some sentencing arguments in play in the upcoming sentencing of former Illinois Governor George Ryan following his conviction earlier this year on various federal corruption charges.  With Ryan's sentencing now only a day away, the Chicago Tribune has articles here and here providing all the background.  Here are the highlights:

Prosecutors want [Ryan] put away for at least 8 years.  His lawyers say anything more than 30 months could take away the last healthy years of his life. The decision falls to U.S. District Judge Rebecca Pallmeyer, who has read through emotional letters from Ryan's family and supporters, and weighed elements of the case that the jury never heard, including the deaths of six children in a highway crash linked to corruption.

September 5, 2006 in Booker in district courts | Permalink | Comments (0) | TrackBack

September 4, 2006

Summer sentencing highlights

Labor Day serves as the unofficial end of summer, so I thought I might review some of the biggest summer sentencing highlights.  In the recap below, I have excluded the end-of-Term action from the Supreme Court in late June, though I start with some notable post-term analysis and developments:







September 4, 2006 in Recap posts | Permalink | Comments (1) | TrackBack

Execution method stories

To cap a relatively quiet long weekend, today's newspapers have a few interesting stories about execution methods:

September 4, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

September 3, 2006

Another scholarship gap-filler from a student law journal

I just tripped across this (new?) on-line companion to the Michigan Law Review entitled "First Impressions."  Here is how the endeavor is described:

First Impressions, an online companion to the Review, features op-ed length articles by academics and practitioners in order to fill the gap between the blogosphere and the traditional law review article. This extension of our printed pages aims to provide a forum for quicker dissemination of the legal community's first impressions of upcoming and recent judicial decisions.

Criminal law is getting its due in this forum, as the inaugural issue was on the Confrontation Clause.  And the next issue "will discuss the future of the death penalty as decided by Kansas v. Marsh."

First Impressions seems to be an interesting variation on the Harvard Law Review's Forum and the Yale Law Jounal's Pocket Part.  I wonder if there are other projects like these in the works at other law journals.

September 3, 2006 in Recommended reading | Permalink | Comments (0) | TrackBack

The Fifth Circuit's interesting hard-to-categorize reasonableness opinion

An insightful reader noticed that, in my recent update of circuit reasonableness decisions, I did not add the Fifth Circuit's decision in US v. Tzep-Mejia (first discussed here).  I left this intriguing decision off my list primarily because Tzep-Mejia affirmed a sentence in which the district court thoughtfully refused to calculate a definitive guideline range. 

Though I am not sure how to categorize Tzep-Mejia, I am sure that the Fifth Circuit's approval of the imposition of a sentence between two possible ranges is worthy of attention.  Thus, I am happy to have this second post about Tzep-Mejia, and also pleased to see the Fifth Circuit Blog give the case an extensive review here.

September 3, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

The costly realities of the death penalty

The Sunday papers bring two interesting articles on the economic realities of the death penalty.  This article from Washington discusses a "possible death penalty case that has dragged on for more than a year and a half and has cost Yakima County taxpayers more than $1.1 million in defense costs." This article from Maryland highlights the impact of economics on decisions in Baltimore to pursue the death penalty for some murders:

Some say budget problems are the biggest obstacle to more death penalty cases in the city. As Donald J. Giblin, a veteran city homicide prosecutor, says, "I don't have a moral problem with the death penalty; I have a resource problem with it."  Death penalty proceedings stretch out over the years and are hugely expensive, with the trial and penalty phases costing at least $500,000, prosecutors estimate.  And that doesn't take into account what can become decades of appeals.

Some related posts:

September 3, 2006 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

The continuing crowding problems in California

As discussed here, earlier this summer, Governor Arnold Schwarzenegger called California's legislature into special session to address prison overcrowding problems.  But, as this article explains, no solutions were engineered:

Lawmakers returned to their districts Friday after a package of prison proposals died when the state Assembly did not vote on them and adjourned the legislative session for a year. Despite furious negotiations during the last few weeks, neither Schwarzenegger's proposal to spend $6 billion on new prison facilities nor a scaled-back Democratic counterproposal gained consensus.

Some related posts:

September 3, 2006 in Scope of Imprisonment | Permalink | Comments (13) | TrackBack